STATE v. BOONE.

1. A United States mail carrier is not a civil
officer of the United States within Code 1883, § 1005,
declaring that the prohibition against carrying concealed weapons shall not
apply to "civil officers of the United States."

2. Code 1883, § 1005,
declaring that the prohibition against carrying concealed weapons shall not
apply to civil officers of the United States "while in the discharge of their
official duties," does not authorize a United States mail carrier to carry a
concealed weapon while carrying the mail and while returning to his home after
delivering the mail.

Douglas, J., dissenting.

Appeal from Superior Court, Gates County; Justice,
Judge.

Riddick Boone was adjudged not guilty of carrying a concealed weapon
on the facts set forth in a special verdict, and the state appeals.
Reversed.

The Attorney General, for the State.

CLARK, C. J. The special verdict finds: "That
within two years before finding the bill of indictment the defendant was United
States mail carrier, bonded and sworn, from Adair to Topsy, in this state, and
that on the day in question, while carrying the mail between said points, the
defendant had a pistol, a deadly weapon, concealed on his person, and after
delivering the mail at Topsy he carried the pistol concealed from Topsy to his
home, one-half mile." The Constitution, art. 1, § 24,
guarantied to the defendant, as to all citizens, the right to bear arms. The
Legislature, however, has the undoubted right to require that such arms shall be
carried openly, and to make the carrying concealed weapons by persons when off
their own premises an indictable offense. This it has done by section 1005 of the Code of 1883, which contains certain
exceptions. The only exception which it is contended embraces the defendant is
"civil officers of the United States while in the discharge of their official
duties." The defendant does not come within the exception for two reasons:

1. "A mail carrier is not a public officer, but is a private agent of
the contractor for carrying the mail" (and in some cases the contractor
himself). Mechem, Pub. Off. § 41; Sawyer v. Corse, 17
Grat. 230, 99 Am. Dec. 445; Throop, Pub. Off. § 12; State v. Barnett, 34 W. Va. 74, 11 S.E.
735; Hathcote v. State, 55 Ark. 181, 17 S.W.
721. In this last case it is said: "Engagement in the service of the
federal government implies no license to violate state laws; and a crime against
the state is not excused by the fact that the criminal was at the time, though
not in the act of its commission, engaged in such service. No such doctrine is
found in Neagle's Case (In Re Neagle, 135 U.S. 1, 10 Sup.Ct. 658,
34 L.Ed. 55), for it only holds that what the federal government enjoins
as a duty the state cannot punish as a crime. It by no means follows that if a
federal officer, while engaged in his employment, does some independent act in
violation of state laws, he may not be held to answer for it. The defendant
shows no authority from the federal government empowering him, as a mail
carrier, to carry weapons; and we think the fact that he was a mail carrier
affords no justification for the act in the absence of such authority. State v. Barnett, 34 W. Va. 74, 11 S.E.
735." If the mail carrier thought that carrying a weapon was necessary
for the protection of the mails, or of himself, or for any other reason, or
chose to carry it for no reason at all, he had a right to do so, but he must
carry it openly, as the law requires of all other citizens when off their own
premises, except those whom the statute authorizes to carry concealed weapons.
If his object was to keep off highwaymen, this could be better done by letting
it be seen that he was armed than by carrying a concealed weapon.

2. Even if the defendant had been a civil officer of the United
States (and not a mere contractor or agent of a contractor), the pistol was not
carried "while in the discharge of his official duties," for it was no part of
his official duties to execute the laws, or do anything which might require the
use of weapons. Still less was he on duty when carrying the pistol concealed
from Topsy to his house, half a mile away. In State v. Hayne, 88
N.C. 625,
this court held that "the exemption from the provisions of the statute is only
given to such officers while in the actual discharge of their official duties";
Judge Ashe saying, "The law gives no protection to a man under such
circumstances [i.e., when off duty], although clothed with the authority of a
deputy marshal of the United States, and having at the time warrants and process
in his possession." In Love v. State, 32 Tex. Cr. R. 85, 22 S.W.
140, it is held that "a deputy postmaster, whose duties are confined to
the post-office building, violates the law when, on his private business or
pleasure, he is found carrying a pistol on the public streets." The statute
(Code 1883, § 1005) forbidding carrying concealed weapons
is a general one, and the exceptions are "officers and soldiers of the United
States army, civil officers of the United States while in the discharge of their
official duties, officers and soldiers of the (p.596)militia and the state guard when called into active
service, officers of the state, or of any county, city, or town, charged with
the execution of the laws of the state, when acting in the discharge of their
official duties." These exceptions are not intended to create a privileged caste
of office holders and military exempted from the prohibition, resting upon all
other citizens, not to carry concealed weapons. But the exceptions in the
statute simply authorize the classes named to carry concealed weapons when on
duty, not as a privilege to them as a class, at all times, but for the public
benefit, when in the discharge of duty. The defendant neither belonged to the
exempted class nor was he on duty when going from Topsy to his home.

There is no question here of concealment, or of intent, which are
matters of defense, but that subject has been recently and fully considered,
with a review of the authorities, in State v. Dixon, 114 N.C. 850, 19 S.E.
364; State v. Lilly, 116 N.C. 1049, 21 S.E.
563; State v. Pigford, 117 N.C. 748, 23 S.E.
182; State v. Reams, 121 N.C. 556, 27 S.E.
1004; State v. Brown, 125 N.C. 704, 34 S.E. 549. Upon
the facts stated in the special verdict, the defendant should have been adjudged
guilty.

The judgment is reversed, and the case remanded, that the sentence of
the law may be imposed. Reversed.